Matthews v. Superior Court
Filed 07/1/13 Matthews
v. Superior Court CA1/2
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
TWO
DIANE E.
MATTHEWS,
Petitioner,
v.
THE
SUPERIOR COURT OF LAKE COUNTY,
Respondent;
THE PEOPLE
OF THE STATE OF CALIFORNIA,
Real Party in Interest.
A138436
(Lake County
Superior Court No. CR-929952)
BY THE COURT:
Petitioner
filed a petition for writ of mandate with a stay request following the trial
court’s denial of her motion to dismiss
under Penal Code sections 656 and 793.
We stayed proceedings in the trial court, requested informal opposition
and reply, and gave notice that we may issue a peremptory writ in the first instance. (See Code Civ. Proc., § 1088;
additional questions. We have received
and reviewed the informal opposition, reply, and answers to our additional
questions and now partially grant petitioner’s request for a peremptory writ of
mandate.
Petitioner
is charged in
Superior Court with possession of vicodin with intent to sell and offer to sell
vicodin. In federal court she was
charged with possession with intent to sell arising from the same incident, but
the charges were dismissed after she completed drug diversion. Based on the dismissal in federal court,
petitioner brought a motion to dismiss the state charges, which was denied. She renews that claim here.
California
Penal Code sections 656 and 793 provides a defense where the charged event
resulted in a conviction or acquittal in another court. Specifically, Penal Code section 793 provides
that “[w]henever on the trial of an accused person it appears that upon a
criminal prosecution under the laws of the United States, or of another state
or territory of the United States based upon the act or omission in respect to
which he or she is on trial, he or she has been acquitted or convicted, it is a
sufficient defense.†Thus, the questions
here are whether the two prosecutions are based on the same “act†and whether
the drug diversion resulted in a petitioner being “acquitted or convicted.â€
The answer to the first question,
whether the two prosecutions are based on the same act, is mixed. The law on whether the
on the same act focuses on whether the state prosecution requires any
additional elements not necessary in the federal. (People
v. Belcher (1974) 11 Cal.3d 91, 99-101.)
Thus, Penal Code sections 656 and 793 do not bar a state prosecution for
burglary (entering the bank with intent to rob) following a federal prosecution
for bank robbery, as the state charges has additional elements. (People
v. Candelaria (1956) 139 Cal.App.2d 432.)
Here, petitioner faces two state charges, one identical to the federal
(possession with intent to sell) and the second with different elements (offer
to sell). Offering to sell drugs
requires more than mere possession (and indeed does not necessarily involve
possession); proof of it necessarily includes an act distinct from possession,
the act of offering to sell the drugs.
Under Belcher and subsequent
cases, that distinction is sufficient to take this case out of the ambit of
Penal Code sections 656 and 793. But,
those sections do provide a defense to charge of possession with intent to
sell, as it is identical to the federal charge petitioner faced.
The second question, whether
petitioner was convicted or acquitted in federal court, was answered by the
answers to our additional questions.
Both parties pointed to the minutes from the
resolution in that case was “dismissed/acquitted†pursuant to a plea
bargain. These plain words control,
leaving no doubt that petitioner was acquitted, thus satisfying the second
requirement under sections 656 and 793.
Let
a peremptory writ of
mandate issue commanding respondent to withdraw its order denying petitioner’s
motion to dismiss and enter a new and different order dismissing the possession
with intent to sell charge. The stay
previously imposed is dissolved upon filing of the remittitur. (See rule 8.490 of the California Rules of
Court.)
Before Kline, P.J., Lambden, J., and Richman, J.
